Do protection orders for domestic violence and harassment work?

November 1st, 2018

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By Katherine Butler

Both the Domestic Violence Act 116 of 1998 (the Act) and the Protection from Harassment Act 17 of 2011 were enacted in order to protect vulnerable members of society. In addition, the Acts aim to ensure that constitutionally enshrined rights, such as the right to equality, privacy, dignity, freedom and security of the person are not unreasonably and unjustifiably infringed. Both Acts, therefore, take up vital legislative space, especially considering the prevalence of violence perpetrated against women and children in South Africa, as well as against the background of the international ‘#MeToo’ movement, which has been gaining momentum in 2018. Furthermore, the Acts are arguably improvements on the previous Acts, namely the Prevention of Family Violence Act 133 of 1993 and having to apply for an interdict in cases of harassment where no domestic relationship existed. Nevertheless, given the apparent pitfalls, which seem to occur in practice, it is imperative to critically reflect on whether these Acts offer the correct balance between protecting the complainant’s rights and safeguarding respondents from vexatious applications.

Procedure followed in terms of the Acts

In both instances, the application for a protection order is ex parte, namely, it is brought by the complainant without notice being given to the respondent. In addition, both Acts make provision for the application being brought on behalf of the complainant by another person who has a material interest in the well-being of the complainant (s 4(3) of the Act and s 2(3) of the Protection from Harassment Act). The application is on affidavit. The prescribed form can either be completed in full by the complainant, or alternatively by the clerk of the court or an attorney can assist the complainant.

The magistrate will then consider the application and, if satisfied that there is prima facie evidence that the requirements, which are explained below have been met, must issue an interim protection order (s 5(2) of the Act and s 3(2) of the Protection from Harassment Act). This interim order, as well as a copy of the application and a record of any additional evidence, which was considered by the court, must formally be served on the respondent to have effect (s 5(3) and (5) of the Act and s 3(3) and (6) of the Protection from Harassment Act).

Once the clerk receives the return of service in respect of the interim order, confirming that it has been served on the respondent in the prescribed manner, a warrant of arrest, which authorises the arrest of the respondent must be served on, or given to the complainant (s 5(7) of the Act and s 3(7) of the Protection from Harassment Act). The warrant’s execution is suspended, and this suspension is subject to the respondent complying with any prohibition, condition, obligation or order imposed by the court (s 8(1)(b) of the Act and s 11(1)(b) of the Protection from Harassment Act). Should the respondent contravene the terms of the interim order or a final protection order, the complainant may hand in the warrant of arrest together with an affidavit, detailing the incident relating to the respondent’s non-compliance, to a member of the South African Police Service (SAPS) (s 8(4)(a) of the Act and s 11(4)(a) of the Protection from Harassment Act). The SAPS then have the option to either arrest the respondent, if it appears that the complainant may suffer imminent harm as a result of the breach, or deliver in person a written notice to the respondent, calling on the respondent to appear before court on a specified date, on a charge of contravening the terms of the interim order (s 8(4)(b) and (c) of the Act and s 11(4)(b) and (c) of the Protection from Harassment Act). This charge is dealt with as a criminal matter, separate from the civil proceedings held in relation to the protection order.

The interim order only remains valid until the return date, which is typically about three months from the date of the interim order having been issued, on which date the respondent must show cause and establish why a final protection order should not be granted (s 5(3)(a) of the Act and s 3(3)(c) of the Protection from Harassment Act). Although under both Acts the respondent may anticipate the return date on 24 hours’ written notice to the complainant and the court, in practice, as explained below, this right of anticipation may be of little actual value.

Powers of the court in respect of protection order

In respect of both the interim and final order, the court has broad powers regarding the contents of the protection order. The respondent may be prohibited from engaging in certain forms of conduct, entering the complainant’s residence or work place and additional conditions can be imposed (s 7 of the Act and s 10 of the Protection from Harassment Act).

The court may not refuse to grant a protection order under either the Act or the Protection from Harassment Act merely on the grounds that other legal remedies are available to the complainant (s 6(7) of the Act and s 10(5)(a) of the Protection from Harassment Act). However, there is a caveat in the case of the Protection from Harassment Act, which makes an exception where a complainant has, or is in the process of applying for a protection order under the Act against harassment or stalking as provided in that Act (s 10(5)(a) of the Protection from Harassment Act). Nevertheless, it appears that the court still retains the discretion to grant a protection order under the Protection from Harassment Act in these circumstances (s 1(2) of the Protection from Harassment Act).

A further significant distinction can be made as to the duration of enforceability for protection orders granted in respect of each Act. A protection order granted under the Act is binding until it is set aside (s 6(7) of the Act), whereas a protection order under the Protection from Harassment Act remains in force for a period of five years, although this period can be extended by the court on good cause shown (s 9(8) of the Protection from Harassment Act).

Comparison between the two Acts and their substantive requirements

Under the Act, the complainant is required to show, firstly, that they are in a domestic relationship with the respondent. A ‘domestic relationship’ is defined broadly in s 1 of the Act, as meaning a relationship between the complainant and respondent, including being married or having been married; co-habitation or having co-habited; being parents of a child or sharing parental responsibilities for that child; having been in a relationship; and sharing or having recently shared the same residence. Secondly, once the domestic relationship has been established, the complainant must show in terms of ss 5(2)(a) and 6(4) of the Act that domestic violence occurred. ‘Domestic violence’ is also defined broadly in s 1 of the Act and includes:

‘(a) physical violence;

(b) sexual abuse;

(c) emotional, verbal and psychological abuse;

(d) economic abuse;

(e) intimidation;

(f) harassment;

(g) stalking;

(h) damage to property;

(i) entry into the complainant’s residence without consent …;

(j) or any other controlling or abusive behaviour.’

In contrast, the Protection from Harassment Act does not require a relationship between the parties and complainants can even bring an application against someone unknown to them. Furthermore, an act of violence is also not required. ‘Harassment’ is widely defined in s 1(1) of the Act and is not restricted to physical or verbal abuse. Essentially, conduct causing harm is required. Such conduct includes behaving unreasonably through acts, such as –

watching, accosting or loitering near the building where the complainant resides, studies or works;

engaging in verbal, electronic or other communication aimed at the complainant;

the sending or delivery of written communications via, for example, letters, packages, or e-mail; and

As stated above, both these crucially important Acts are aimed at protecting vulnerable members of society and upholding their constitutional rights. However, the Acts are not above criticism, as the current system is open to abuse. In practice, a recurring issue which has emerged, is that a disgruntled former partner or neighbour with a long-standing grudge can approach the court, making false or exaggerated allegations in their affidavits and, based on this, an interim protection order can be granted, without respondents being given notice or having an opportunity to defend themselves. Particularly when parties have legal representatives, court proceedings can be drawn out for months with parties incurring unnecessary legal costs and experiencing heightened frustration. The court may decide not to issue a final protection order only after thorough cross-examination of both the complainant, respondent and any witnesses called on to testify during the trial.

In such a situation, possible recourse for the respondent includes the respondent’s right of anticipation, as provided for in s 5(5) of the Act and s 3(5) of the Protection from Harassment Act. In terms of these sections, the return date in respect of the interim protection order may be anticipated by the respondent, provided that the complainant and the court receive prior written notice of at least 24 hours. Although the respondent has the right to anticipate the return date, this is subject to the availability of a magistrate and other court resources. This right is also only in respect of the initial return date and does not apply to subsequent postponements. Particularly, where an interim protection order against harassment has been granted, requests by the complainant for further postponements during trial proceedings can easily amount to an abuse of process.

Moreover, the Acts stipulate that the court may only make a costs order against a party who has acted frivolously, vexatiously or unreasonably (s 15 of the Act and s 16 of the Protection from Harassment Act). In practice, a costs order is seldom made against the complainant.

Another point of contention is that, subsequent to the interim protection order having been issued, the Acts provide specifically that a complainant who makes materially false statements in their affidavit in respect of having the warrant of arrest authorised is guilty of an offence and is liable on conviction to a fine or imprisonment (s 17(d) of the Act and s 18(1)(b) of the Protection from Harassment Act). This provision, however, fails to deter complainants from making materially false statements in their affidavits when initially bringing the application for an interim protection order.

Conclusion

In the light of the above critique, it is, therefore, argued that the Acts, due to the broad definitions and procedure followed, fail to adequately safeguard respondents from vexatious applications. It is proposed that stricter threshold requirements should be imposed before an ex parte application can result in an interim protection order being granted. In addition, the courts should not hesitate to make costs orders against vexatious litigants and to refer complainants for prosecution, when they have made materially false statements in their affidavits for enforcement of a warrant of arrest.

For other articles pertaining to the Domestic Violence Act and the Protection from Harassment Act see: